‘Wrongful arrest’ in homicide case, lawyer says

NOTE: This story appeared, edited to space, in the Winnipeg Free Press, March 18, 2019. The version below is a longer one with full comment from police and the prosecutor’s office, as well as more from lawyer Martin Glazer. It is the first in what will be an ongoing series I’ll be investigating over the coming months.

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A veteran Winnipeg criminal defence lawyer is again sounding the alarm over police procedures after his client was recently arrested and jailed in a homicide case where the victim’s cause of death is undetermined.

Juhyun Park, 44, is accused of first-degree murder in connection with the death of his wife, Eunjee Kim, 41.

Kim was found unconscious in an apartment suite on Daer Boulevard early on Jan. 9.

Winnipeg police initially accused Park of manslaughter, but upgraded the charge to the most serious in the Criminal Code on Feb. 8. They offered no explanation of why or what had changed.

Park is facing a mandatory life sentence without parole for 25 years if convicted.

His lawyer, Martin Glazer, told the Free Press an autopsy has revealed no anatomical cause of Kim’s death.

Meanwhile, crucial toxicology tests underway at an out-of-province RCMP laboratory could take up to six months to come in, Glazer said he’s been told.

That’s a delay which shows there’s a systemic problem police should account for in homicide cases where cause of death isn’t immediately at hand, Glazer said.

Police should have waited for conclusive results before charging Park, Glazer believes.

“If the scientific investigation is incomplete then the overall investigation is incomplete,” he said. “In my view you have a wrongful arrest in this case because it’s premature.”

Park has no criminal record, remained at the crime scene until police arrived and was injured by a stab wound in the leg, said Glazer.

He faces the prospect of many more months in jail awaiting trial if he’s denied bail. Park came to Canada from Korea in 2017 on a student visa and was studying to improve his English. Kim, his wife of 17 years, had only been in Winnipeg a couple of days before she died, Glazer said.

Emails Glazer sent to the Manitoba Prosecution Service show he’s been repeatedly requesting more information about how Kim died since Jan. 15. No further information on this point has been forthcoming from the Crown, he said.

“Given the absence of a cause of death in this case I am renewing my request for a stay of proceedings,” Glazer wrote to the Crown on Feb. 12. “As you can appreciate once the toxicology results are available and if it turns out that my client’s wife did not die as a result of foul play then he will have spent a substantial period of time in custody for no reason,” wrote Glazer.

“I question the existence of reasonable and probable grounds to justify his arrest for homicide in the first place … At the very least it appears to me that the arrest in this case was premature and that the police should have held off until a cause of death was determined.”

Murder charge reverses onus to accused persons

He has urged the Crown to either stay the charge — allowing them a year to keep investigating and then re-lay it if warranted— or consent to Park’s release on bail. The Crown has refused, Glazer said. A contested, day-long, bail hearing is set for Tuesday in the Court of Queen’s Bench. Because the charge is murder, it’s Park, not the Crown, who must satisfy the judge he can be released into the community pending trial.

In a Feb. 11 email to Glazer obtained by the Free Press, the director of the provincial medical examiner’s office said the RCMP testing on biological samples “will take a considerable period of time” — between four to six months.

“In a complex case of this nature, where the police investigation remains active and new information (for instance, the deceased’s medical history) may come to light, it would be irresponsible and dangerous for the pathologist to produce a definitive cause of death without being able to consider the results of all additional testing that is pending,” Mark O’Rourke wrote.

Glazer doesn’t deny police are doing their jobs. But he questioned the “cart before the horse” situation he believes has unfolded.

“The problem is in this case is a lack of medical diagnosis, and without it, police aren’t given the tools they need to make the final call,” he said. The Supreme Court of Canada has said police should err on the side of caution and keep open minds before laying charges.

“Don’t presume the cause of death is nefarious, that’s what I’m saying,” Glazer said.

Glazer said he was not in a position to discuss other evidence police may have gathered and deferred to them.

‘Autopsy and toxicology results are just part of the overall investigation’: WPS

And while declining to discuss specifics of the case, Winnipeg police said Friday it’s not uncommon to lay homicide-related charges before autopsy results are in.

“This is also the case regarding toxicology results,” police spokesman Const. Rob Carver said in an email. “Charges are based on the totality of the circumstances, and both autopsy and toxicology results are just part of the overall investigation.” When murder charges are laid, he said, a Crown attorney is consulted.

“Only when they are in agreement are they laid,” Carver said. “Police form the opinion that there are reasonable and probable grounds (to charge someone) based on the totality of circumstances surrounding the incident.”

Manitoba Prosecution Service said Crown attorneys assess a case’s legal elements and quality of evidence before laying charges or proceeding on ones laid by police. “All evidence must be considered,” said a departmental spokesperson.

“The Crown also considers what the medical examiner has assessed, including cause of death, and other relevant issues related to the case. In rare cases, for example, a murder or manslaughter charge might be authorized even if there has not been a forensic medical examination, in situations where the body has not been located or is no longer available for autopsy.”

Timelines for forensic testing can vary, the spokeswoman said, but she added the department is “always interested in timely evaluation and accurate results.”

8 months locked up for an unfounded manslaughter: The Robert Maier case

It’s not the first time issues surrounding homicide cases and delays in justice officials obtaining conclusive causes of death has emerged in Manitoba.

In October 2013, Martin Glazer called for a public inquiry after another client spent nearly eight months behind bars charged with a homicide that was later found to be a drug overdose.

Robert Maier, 38, admitted assaulting Ronald McKinnon, 54, hours before McKinnon was found dead in his Balmoral Street suite on Feb. 26, 2013.

But after waiting months for toxicology test results, a pathologist concluded McKinnon died by overdosing on alcohol and prescription pills.

Police initially said an autopsy showed McKinnon died of injuries sustained in the assault.

Questioned after the actual cause of death came to light, police said it was possible investigators were working on the basis of preliminary theory provided to them by a medical examiner.

Glazer at the time wrote then-Manitoba Attorney General Andrew Swan requesting an inquiry to get to the bottom of questions raised in the case.

He said the province refused but would look into what happened in Maier’s case. The prosecution service did review the matter but concluded the system worked as it should have in the end, said Glazer.

Current RCMP forensic laboratory statistics show an average of 79 days to complete investigative requests for toxicology examinations — but also a backlog of two hundred so-called “routine” cases.

The data, comprising the period between April 2017 to March 31, 2018, shows RCMP labs were able to meet a commitment date on what they term “routine” toxicology exam requests 61 per cent of the time.

All 12 requests put in as “priority” cases were satisfied by the lab’s promised completion date, the data shows.

The laboratories handled more than 2,500 requests for toxicology examinations over the year-long period.

“Case prioritizations are based on set criteria that include the level of risk to public safety (e.g. whether a suspect is still at large or is a significant flight risk, the level of violence, the likelihood of the suspect re-offending) and/or how the results of the forensic analysis will be used in the investigation,” RCMP said in a statement to the Free Press.

“The length of time to complete a service request will depend on the type of analysis being requested, the number of samples, and the type of materials that are being submitted for forensic analysis.”

RCMP laboratories handle forensic investigative requests from police agencies across Canada excluding Quebec and Ontario, which have their own labs.